Allcorn, Morgan and Horn.
[157 NJSuper Page 312] Defendant appeals his convictions of possession of a controlled dangerous substance (N.J.S.A. 24:21-20) and possession of such substance with intent to distribute (N.J.S.A. 24:21-19(a)(1)) contending that (1) the trial judge should, on his own motion, have entered a judgment of acquittal following presentation of the State's case; (2) the trial judge erroneously instructed defense counsel to refrain during summation from urging the jury to draw an adverse inference from the nonappearance of one
Albert Briggs as a State's witness and erroneously rejected defendant's request that the judge charge the jury as to the availability of such an inference, and (3) the trial judge erroneously denied defendant's motion for a new trial on the basis of newly discovered evidence.
The evidence at trial disclosed that Albert Briggs was engaged by the police as an undercover agent for the purpose of attempting to buy drugs in the area of Rubin's Tavern, a tavern which he patronized on a daily basis, being employed only a block away.
On March 3, 1977, following formulation of this plan, Briggs left the station house for Rubin's Tavern with a marked $10 bill given him for the purpose of purchasing drugs, after having been searched for narcotics, weapons or other contraband. Under surveillance as he operated, Briggs approached defendant and engaged him in conversation outside the tavern's entrance. Codefendant Brown was motioned by Briggs to join in the conversation. After this conversation the observing officers saw Briggs hand defendant what appeared to be money, after which Briggs and Brown entered the tavern; defendant remained outside.
The officers on surveillance then entered the tavern, talked to Briggs, and soon thereafter observed the codefendant Brown emerging from the men's room located at the rear of the tavern. Brown was apprehended and a search of his person disclosed a "dime bag" of heroin held in his hand. A search of defendant disclosed the marked $10 bill given him by Briggs. A later search of Brown at police headquarters disclosed five more glassine envelopes of heroin in his socks.
The foregoing events were recounted at trial by the two officers who observed them; Briggs, although subpoenaed by the State, did not appear to testify. Accordingly, at the termination of the State's case defense counsel requested a so-called Clawans charge advising the jury of the availability of an inference, unfavorable to the State, derived from the absence of Briggs as a witness for the State. The
court declined to so charge and further instructed defense counsel to avoid urging such an inference during summation.
The defense consisted of the testimony of one Austin who testified that he was present during Briggs' encounter with defendant in front of Rubin's Tavern and that he overheard the substance of much of the the conversation. According to Austin, Briggs first asked defendant for a match, after which defendant confronted Briggs with a demand that he pay defendant for breaking into defendant's mother's home and breaking her stereo set. Briggs then took Casey aside and they continued their conversation, which Austin did not hear. Austin denied, however, hearing any conversation relating to narcotics and stated that after the conversation Briggs walked down the street and the police pulled up.
After conviction defendant moved, pursuant to R. 3:20-1, for a new trial, supported by an affidavit by Albert Briggs, the missing State's witness, in which Briggs denied the whole of the transaction about which the two officers testified. Specifically, he denied his role as undercover agent, that he had been given a marked $10 bill with which to purchase narcotics, denied that he had spoken to defendant about narcotics or that he had passed the marked $10 bill to defendant. Although recognizing his signature on a statement given to the police, he denied knowing how his signature got on the statement because he remembered giving no statement. As to his conversation with defendant, the subject matter, according to Briggs, was with regard to a record player belonging to defendant's brother, and not about narcotics. Defendant's motion for a new trial based on this newly discovered evidence was denied.
Defendant's first contention that the judge should on his own motion, have entered a judgment of acquittal is without merit. Viewing the State's evidence in its entirety, and giving the State the benefit of all favorable inference which a jury could reasonably derive therefrom, we conclude that the evidence was clearly ...